People v. Moine

62 Cal.App.5th 440

276 Cal.Rptr.3d 668

The PEOPLE, Plaintiff and Respondent,

v.Marco MOINE, Defendant and Appellant.

B303013

Court of Appeal, Second District, Division 1, California.

Filed March 24, 2021

Certified for Partial Publication.^*

Michael C. Sampson, Monterey, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.

FEDERMAN, J.^**

A jury convicted Marco Moine of two counts of making criminal threats in violation of Penal Code section 422, subdivision (a).¹ The trial court suspended imposition of sentence and placed Moine on probation for five years.

Prior to trial, Moine sought mental health diversion under sections 1001.35 and 1001.36, citing his diagnoses of Bipolar I disorder and attention-deficit/hyperactivity disorder (ADHD). The trial court denied the request for diversion, finding Moine posed an unreasonable risk of danger to public safety. During the subsequent jury trial, the court excluded testimony by Moine's court-appointed psychiatrist concerning Moine's mental health disorder.

On appeal, Moine argues his conviction must be reversed, claiming the denial of mental health diversion and the wholesale exclusion of the psychiatrist's testimony was erroneous and prejudicial. Moine also argues the trial court erred in joining two unrelated charges, and the length of his probation must be reduced given the recent amendments to section 1203.1.

In the published portion of this opinion, we hold that the trial court abused its discretion in finding that Moine posed an unreasonable risk of danger to public safety. We reverse and remand the matter with instructions for the trial court to conduct a new hearing to consider Moine's eligibility for mental health diversion. In the event he is again found ineligible for diversion, the trial court may conduct a new trial on the criminal threats charges.

In the unpublished portion of the opinion, we conclude the trial court erred in excluding the psychiatrist's testimony, and the error was prejudicial, warranting reversal of Moine's conviction for making criminal threats. We do not reach Moine's other arguments.

FACTUAL AND PROCEDURAL SUMMARY

The People charged Moine with three counts of assault (the assault counts) and two counts of making criminal threats (the criminal threat counts) for two separate incidents occurring in the offices of two different medical care providers.

The first incident involved a fist-fight that took place in the waiting room of an urgent care facility in Palos Verdes on April 20, 2017. On that day, while Moine was in the waiting room, he asked a staff member at the front desk to turn off the television. Another patient confronted Moine about his request, and they entered into a fist fight. They each landed blows upon the other. At trial, they each presented conflicting testimony about who initiated the confrontation and who was more aggressive.

The second incident took place nearly a year later in another medical provider's waiting room. On March 12, 2018, Moine sought medical care at an urgent care clinic in Loma Linda, hoping to secure a refill of his medications. After Moine saw the physician's assistant, an office manager escorted Moine from the treatment room and handed him his prescription. Moine became upset that a referral to a psychiatrist had not been approved, and he questioned the office manager about the medication he had been prescribed.

As Moine left the medical office with his mother, the office manager heard him say something "along the lines of, ‘This is America. I can go home and get my gun and come back and shoot all of you.’ " The officer manager explained that over the course of a five-minute period, Moine made several other statements, which she described as "ranting," and he was cursing, pacing, and "talking with his hands up in the air" as he spoke.

A nurse who was at the front desk testified that Moine was visibly upset. She did not "remember exactly" the words Moine spoke, but recalled him saying "If I didn't get—they are lucky—they are lucky I don't have my gun with me, otherwise I would kill everybody here." He continued, "I am going to come in and kill everybody here." On cross examination, she agreed he also used the phrase, "If I had a gun."²

Moine testified that he became upset because the office manager handed him a prescription for a medication he had not been prescribed before. He was concerned because he "didn't understand [the medication]’s side effects." When he asked the office manager about the prescription, "she dismissed [his] concerns entirely," retorting, "Oh, so you went to medical school." Moine was "shocked" by this behavior, and responded, "If the Parkland guy came in here, would you have been condescending to him, too?"³ He continued by noting there were 30,000 gun deaths in America every year and that "she was blowing caution to the wind by mocking someone who had just told her he struggles with mental health issues."⁴ He cautioned her "against being rude to strangers" because it was possible people could "respond violently." He then realized that he "had made a major error in trying to explain [him]self and [he] immediately apologized."

Moine's mother was present at the medical clinic that day, and she testified that she heard Moine say, "If I were the sort of person who had a gun, I would come back and shoot you." But she emphasized that Moine "immediately" apologized, and did so "profusely."

After he left with his mother, Moine returned to the office about 20 minutes later to search for his identification card, which he had misplaced. Moine was arrested three weeks later and told law enforcement officers that he did not threaten anyone.

The People charged Moine for both incidents in an amended information, charging him with two felony counts for assault and battery and one misdemeanor count for battery for the first incident ( § 245, subd. (a)(4), count 1; §§ 242, 243, subd. (d), count 2; and § 242, count 3), and two felony counts of making criminal threats for the second incident ( § 422, subd. (a), counts 4 & 5).

The jury found Moine not guilty of the assault charges involving the first incident. They found him guilty of making criminal threats at the second facility, as charged in counts 4 and 5.

At the sentencing hearing on November 19, 2019, the trial court suspended imposition of sentence and placed Moine on probation for five years.

Moine timely appealed.

DISCUSSION

A. Mental Health Diversion

1. Factual Background

Moine filed a pre-trial motion seeking mental health diversion under section 1001.36. His motion attached a medical report by a court-appointed psychiatrist, Joel P. Leifer, MSW, Ph.D.

Dr. Leifer diagnosed Moine as suffering from Bipolar I and ADHD, which are recognized mental disorders. (See Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013) Bipolar and Related Disorders; id. at Disruptive, Impulse-Control, and Conduct Disorders. ) In reference to Moine's report about the second incident involving the criminal threats charges, Dr. Leifer noted that "[a]t the time of this offense, ... Moine had been experiencing an exacerbation of his manic symptoms and was desperate for mitigation of these symptoms."

Dr. Leifer opined that both of the alleged "crimes have occurred in the course of the emergence of [Moine's] severe manic symptoms, and/or in his attempt to manage them." The report concluded Moine "has never been adequately diagnosed, treated, or psychiatrically stabilized on any effective medication regimen." Referencing a forensic assessment dated February 17, 2019, by another psychiatrist, Dr. Knapke, under Evidence Code section 730, Dr. Leifer noted that "[b]oth Dr. Knapke and I concur that [Moine] is at low risk for future assault."

The People filed written opposition to mental health diversion, arguing that Moine would pose an unreasonable risk of danger to public safety if he were treated in the community. The opposition did not include an analysis of the term "unreasonable risk of danger to public safety," as defined in section 1001.36, subdivision (b)(1)(F).

The trial court announced its ruling at a brief hearing on October 9, 2019, noting that it had read the papers and considered argument by counsel. The court denied the request for diversion. In reaching its decision, the court stated it assumed the facts alleged with respect to the two underlying incidents to be true. Based on the fact that Moine was present at two mental health facilities and "engaged in acts of violence" against others who were present, his conduct demonstrated that he posed "a danger to the public and releasing him into a pretrial status where he would be working on diversion is contrary to public safety." (See § 1001.36, subd. (b)(1)(F).)

We note that immediately following this ruling, the court confirmed that Moine remained out of custody and on bail, a status he had enjoyed since at least the time of the preliminary hearing on the assault charges on June 9, 2017.

2. Legal Framework

Effective June 27, 2018, the Legislature created a diversion program for defendants with diagnosed mental disorders. (See § 1001.36, subd. (a).)⁵ The purpose of the statute is twofold: (1) to increase "diversion of individuals with mental disorders to mitigate the individuals’ entry and reentry into the criminal justice system"; and (2) to provide "diversion that meets the unique mental health treatment and support needs of individuals with mental disorders." ( § 1001.35, subds. (a) and (c).)

" ‘[P]retrial diversion’ means the postponement of prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication, to allow the defendant to undergo mental health treatment ...." ( § 1001.36,...